The Queen v Hooper[1999] QCA 310

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

CA No 37 of 1999

Brisbane

THE QUEEN

v

GARETH ANDREW HOOPER

Appellant

de Jersey J

McMurdo P

Demack J

Judgment delivered 6 August 1999

Separate reasons for judgment of each member of the Court, McMurdo P dissenting.

APPEAL AGAINST CONVICTION DISMISSED.

REASONS FOR JUDGMENT - de JERSEY CJ

Judgment delivered 6 August 1999

1. Two issues arise on this appeal.  (The originally specified ground of appeal, that the verdicts are “unsafe and unsatisfactory”, was not pursued, and the two live grounds were added by leave.)  The first question is whether the learned trial judge properly allowed the trial to proceed on an indictment alleging separate instances of indecent dealing against two complainant boys.  Determining this question involves consideration of Pfennig v R (1994-5) 182 CLR 461, as helpfully recently explained by the Court of Appeal in R v O'Keefe (CA No 332 of 1998, 5 March 1999).   The second question, more procedural in character, is whether the judge was right in allowing the trial to proceed on the indictment in that form, where another judge at an earlier trial on the same indictment - which ultimately aborted - had directed that the counts relating to the respective complainants must be tried separately, and “leave to re-open” that direction had not been expressly sought and granted under s 592A(3) of the Criminal Code.

2. In O'Keefe, Thomas JA, with the concurrence of Pincus JA and Davies JA, synthesised into the form of two questions, the approach required by Pfennig.  This is in the context of one’s acknowledgement that to warrant such a joinder of charges, the evidence in respect of each count must be properly admissible in proof of all others: de Jesus v R (1987) 61 ALJR 1.  In O'Keefe Thomas JA formulated the questions in this way:

“(a)Is the propensity evidence of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged?  The observations of Pincus JA in W are helpful in addressing this particular question; and

2. If the propensity evidence is admitted, is the evidence as a whole reasonably capable of excluding all innocent hypotheses?  This would have to be answered on the assumption of the accuracy and truth of the evidence to be led.  If the judge thought that the evidence as a whole was not reasonably capable of excluding the possibility that the accused is innocent, then the accused should not be exposed to the possible risk of mistrial by a jury that might give undue prejudicial weight to propensity evidence.  The exercise is to be undertaken with special care because of the potential danger of misuse of such evidence by the jury.”

3. It is necessary to recount briefly the circumstances of the offences.  Counts 1 to 3 related to a complainant boy then 13½ years old, and in the appellant’s care.  The offences occurred over a comparatively brief period in the night of 30 September 1995.  The appellant was the complainant’s basketball coach.  On this evening of the first day of the training camp, the complainant together with other boys and the appellant were watching a movie at the home of one of the boys.  The complainant and the appellant were sitting on a couch, with a blanket covering them from the stomach down.  The appellant rubbed the complainant’s leg, applied pressure to deter the complainant from getting up, and eventually masturbated the boy’s penis within his shorts for 20 to 30 minutes to the point of ejaculation.  After the movie, the other boys left the room, and the appellant requested the complainant to stay.  The appellant compelled the complainant to rub his (the appellant’s) penis.  The complainant broke free and locked himself in the toilet.  The complainant later returned to the lounge area.  The appellant again then masturbated the complainant to ejaculation.  The complainant ran to his bedroom.  The appellant later told the complainant not to “tell anyone or else”. 

4. Counts 4 and 5 relate to another complainant boy then 14 years old.  These offences occurred on the evening of 31 October 1997.  The complainant was at the home of a school friend.  The appellant was that friend’s basketball coach.  The appellant lived in a bungalow on the same property.  The complainant and the appellant and two other friends of the complainant were at the appellant’s bungalow in the evening watching a movie.  They had earlier been playing basketball.  The appellant went outside.  The complainant followed him and found him apparently distressed.  The appellant explained by referring to having to go to court the following week.  As the complainant went to return inside, the appellant grabbed him and forced him to a pool area.  The appellant pulled on the complainant’s penis, causing it to become erect.  The appellant forced the complainant to the ground, removed his own pants and performed an act of oral sex on the complainant, over a period of about three minutes.  The complainant was attempting to yell out and otherwise protest.  The appellant then told the complainant, in an aggressive tone, that “if (he) told anybody he’d kill (him) and if (he) told (J) that he’d go after (his) family”.  (J was the friend at whose house the complainant was staying that evening.)

5. It was contended for the respondent that the “similarities and underlying unity” related not so much to the immediately relevant conduct, but to the broader circumstances in which the offences occurred.  Mr Meredith listed these relevant circumstances in his written submissions:

“(a)the complainants were both (about) 14 at the time of the offences;

2. the appellant came to know and to be with each complainant because of his role as a basketball coach;
3. both complainants were from single parent families and it is submitted therefore more vulnerable to interference than might otherwise be the case;
4. the offences were committed in a brazen way, namely in the first case it occurred in the presence of others while the activity was hidden by a blanket, and in the second case was very close to others;
5. the appellant made a threat to each complainant not to inform, and more importantly remained in the vicinity to discourage such informing;
6. in each case the alleged offences took place when the complainant was away from his home surrounding, namely staying with third parties; and
7. the appellant at the time of the alleged offences was in a trusted position, that is trusted by the complainant’s parent and whoever was the adult at the place the complainants were staying.”

6. Mr Long, who appeared for the appellant, submitted that the evidence established no more than propensity in the appellant to commit this type of offence, so that the joinder was not justified.  He contended that the circumstances relied on by the Crown, as summarised above, bore no “hallmark or particularly distinctive feature” such as would warrant the admission of the evidence in relation to the treatment of one complainant on the trial of the charges relating to the other.

7. One needs to approach this listing of circumstances with some care.  The significance of some of the individual matters may have been overstated.  For example, as to matter (b), the circumstance of the appellant’s being a basketball coach was, with relation to the second complainant, rather co-incidental: it did not explain the presence of the second complainant with the appellant, although that circumstance did explain the presence of the first complainant with the appellant.  As to (c), there was apparently no clear evidence at the trial that the appellant knew of an arguable vulnerability based on that aspect of each complainant’s domestic situation.  As to (e), the time for which the appellant remained in the vicinity following the commission of the offences in relation to the second complainant, was much more limited than in the case of the first complainant.

8. Further, these sorts of considerations must be placed into a full overall context.  Mr Long rightly pointed out that one must not ignore other aspects of differentiation between the circumstances of the two sets of offences.  As examples, in relation to the second complainant, there was oral sex which did not occur with the first complainant; in relation to the threats, there was with the second complainant a threat to kill, absent in the case of the first.

9. Giving what may be considered due allowance for these matters, the points of similarity between the two sets of offences came down to this:

1. both complainants were athletic boys in early adolescence:
2. the appellant came into contact with both boys through their common interest in basketball: the appellant made use, for his own reprehensible purpose, of the opportunity thereby created;
3. the appellant took advantage of the circumstance that each complainant was away from his own home surroundings, and therefore out of the immediate protection of his parent;
4. the appellant did so in circumstances where he was in a trusted position vis-a-vis the complainant’s parent;
5. the appellant committed the offences in a brazen way, in the sense that the  complainant’s friends were either present or nearby;
6. in each case, the appellant persisted in the face of resistance;
7. the appellant made threats following the commission of the offences, and more significantly, the appellant then stayed in the vicinity, at least for a time, as if to monitor that no complaint would be made.

10. One may usefully ask whether this combination of circumstances of similarity, after allowing for the sorts of points of difference referred to above, suggests a striking similarity between the approaches, or a similar underlying pattern applicable to each, such as one should answer Thomas JA’s first question, “yes”.    Or on the other hand, was this a case like Carne (CA No 553 of 1996, 24 June 1997), a case of alleged murder, where  “the aggregation of similar and different features suggest(ed) no shared, significant deviation from the common norm of criminal acts of murder, no significant departure from the “stock in trade” of persons who kill and dispose of their victims’ bodies”?  As I pointed out in Carne, “while ‘striking similarity’, ‘unusual features’, ‘underlying unity’, ‘system’ or ‘pattern’ are not essential prerequisites for admissibility, their presence will often, as a matter of commonsense and experience, exclude the possible reasonable explanation to which Pfennig and Hoch refer”.  One might usefully ask, with respect to the first series of offences, whether - again adopting the language of Carne, the appellant “left any unique ‘signature’ (cf Pfennig, p 488) on the first incident which, through reappearance in the second, would warrant the jury’s saying, “adding to what we already know of his complicity in the second, his involvement in the first - of course he must have murdered again, it is the only conclusion we can reasonably reach”. 

11. Answering this first question as posed by Thomas JA in O'Keefe, in a case like this, is very much a matter of impressions.  It is no easy task.  It is indeed an issue upon which reasonable minds may differ, but that does not relieve one of the responsibility of reaching a determination.  While appreciating that there is frequently similarity in the approach taken by predators in these situations, the combination of circumstances (a) to (g) above does suggest a particular distinctive approach characteristic of this appellant.  It is the aggregation of features which warrants that conclusion.  Certainly taken separately, those features individually would not be enough. I have therefore reached the view that that aggregation of circumstances of similarity, after due allowance for points of difference, was reasonably sufficient to justify the joinder of the charges, and going on then with reference to Thomas JA’s second question, I also conclude that the evidence as a whole was reasonably capable of excluding all innocent hypotheses.

12. Turning to the second ground, on 21 September 1998 in the course of an earlier trial on the same indictment, Howell DCJ ruled that the counts relating to the separate complainants must be tried separately.  That trial aborted, with the jury’s being discharged without the need to bring in verdicts.  When the indictment came before the current judge (Healy DCJ) for trial, His Honour determined, as has been seen, that the trial should proceed on the full indictment. 

13. The issue arising under this second ground of appeal is whether the ruling by Howell DCJ amounted to a direction or ruling which, by force of s 592A(3) of the Code, was binding on Healy DCJ as the eventual trial judge, in circumstances where Healy DCJ had arguably not “for special reason, (given) leave to reopen the direction or ruling” which had been made by Howell DCJ.  When asked to rule on the issue whether the trial should proceed on the entire indictment, Healy DCJ was made aware of the earlier ruling by Howell DCJ.

14. Section 592A(1) and (2) provide that following the presentation of an indictment, a judge may give directions and make rulings “as to the conduct of the trial”.  Here it is suggested that at the retrial, Healy DCJ as trial judge was bound by the direction given at the earlier aborted trial by Howell DCJ.  Mr Meredith pointed to a possible practical complication if that be correct.  As he put it, “if the words ‘the conduct of the trial...’ meant that such rulings or directions bound all subsequent trial judges on retrials then it would in effect be saying that subsequent trial judges were bound even though there had been a ruling to the contrary before an appeal court.”  In any event, by presenting the full indictment, unaltered, at the trial before Healy DCJ, the prosecution must be taken implicitly to have sought any necessary leave to “reopen” that earlier direction by Howell DCJ (s 592A(3)), assuming it still to have been operative.  Healy DCJ, being aware of the earlier ruling, further must be taken to have seen “special reason” warranting reconsideration - that reason being his own substantial disagreement with the earlier ruling.

15. In any case, if there was technical error here, it would not necessarily ipso facto invalidate the convictions.  For reasons expressed with relation to the more substantive former point, these convictions should stand, even were there held to be the technical procedural irregularity for which Mr Long contended.

16. The appeal should be dismissed.

REASONS FOR JUDGMENT - McMURDO P

Judgment delivered 6 August 1999

1. I have had the advantage of reading the reasons for judgment of the Chief Justice who has set out the facts and analysed the issues in this case.

2. The major question for determination in this case is whether counts 1, 2 and 3 (the first offences) were rightly joined with counts 4 and 5 (the second offences). The appellant argues that these two sets of counts were wrongly joined as the evidence in respect of one set of offences was not admissible as similar fact or propensity evidence in proof of the other set of offences: see de Jesus v The Queen.^[1]  The learned trial judge refused the defence application to sever the charges saying:

"It seems to me that the evidence of each complainant has probative value and there appear to be what could be called striking similarities in the evidence each of the complainant[s] can give."

He did not specify what he regarded as the striking similarities.

3. In Pfennig v  The Queen^[2] Mason CJ, Deane and Dawson JJ stated:

"Where the propensity or similar fact evidence is in dispute, it is still relevant to prove the commission of the acts charged. The probative value of the evidence lies in the improbability of witnesses giving accounts of happenings having the degree of similarity unless the events occurred. Obviously the probative value of disputed similar facts is less than the probative value those facts would have if they were not disputed. But the prejudicial effect of those facts may not be significantly reduced because the prejudicial effect that the law is concerned to guard against is the possibility that the jury will treat the similar facts as establishing an inference of guilt where neither logic nor experience would necessitate the conclusion that it clearly points to the guilt of the accused. Because propensity evidence is a special class of circumstantial evidence, its probative force is to be gauged in the light of its character as such.  But because it has a prejudicial capacity of a high order, the trial judge must apply the same test as a jury must apply in dealing with circumstantial evidence and ask whether there is a rational view of the evidence that is consistent with the innocence of the accused.  Here 'rational' must be taken to mean 'reasonable' and the trial judge must ask himself or herself the question in the context of the prosecution case; that is to say, he or she must regard the evidence as a step in the proof of that case.  Only if there is no such view can one safely conclude that the probative force of the evidence outweighs its prejudicial effect. And, unless the tension between probative force and prejudicial effect is governed by such a principle, striking the balance will continue to resemble the exercise of a discretion rather than the application of a principle."^[3]

4. In R v O'Keefe ^[4] this Court held that Pfennig required that in cases such as this the trial judge must address two questions:

"(a)Is the propensity evidence of such calibre that there is no reasonable view of it other than as supporting an inference that the accused is guilty of the offence charged? ... and

2. If the propensity evidence is admitted, is the evidence as a whole reasonably capable of excluding all innocent hypotheses?"

This would have to be answered on the assumption of the accuracy and truth of the evidence to be led.  If the judge thought that the evidence as a whole was not reasonably capable of excluding the possibility that the accused is innocent, then the accused should not be exposed to the possible risk of mistrial by a jury that might give undue prejudicial weight to propensity evidence.  The exercise is to be undertaken with special care because of the potential danger of misuse of such evidence by the jury."^[5]

5. The issue then is whether each set of offences here was so strikingly similar that there was no reasonable view of them other than supporting an inference that the accused was guilty of the other set of offences.

6. The learned trial judge did not detail any of the similarities which he regarded as striking.  The facts set out by the Chief Justice demonstrate that in each instance the complainants were 13 to 14 year old boys; it could be said the offences were committed in a brazen way in that the complainants' friends were present when the first offences occurred surreptitiously under a  blanket and were present at the same property some distance away so that they were unable to hear the boy's cries of distress when the second offences occurred; and in each instance the offences were committed on the boys when they were away from their own home and the protection of their parent or parents.

7. Counsel for the respondent argued that a further similarity was that in each instance the appellant came into contact with the boys through their common interest in basketball.  This is not entirely borne out by the evidence.  In respect of the first offences there was the circumstance of aggravation alleged that the complainant was in the care of the appellant: he was the boy's club basketball coach and was assisting the representation coach at a training camp which included the boy and from which a state team to play at the national titles was to be chosen.  In the second offences the complainant came into contact with the appellant through the boy's friend: the appellant was the friend's basketball coach and the complainant boy played backyard basketball with two of his friends and the appellant whilst staying at his friend's home prior to the commission of the offences.

8. Counsel for the respondent also submits that a further similarity is that in each case the appellant persisted in the face of resistance.  It is not unusual in such cases for complainants to claim they resisted even where through embarrassment or confusion resistance may not have been communicated to the offender.  Certainly there is no suggestion of any degree of force used such as left any mark or injury on either boy; nor was any resistance noted by others present at the locations. 

9. Whilst the appellant made threats to each complainant, such an allegation is common in these cases. Here there are at least as many differences as to the complainant boys' evidence of threats as there are similarities. 

10. Counsel for the respondent submitted that after the appellant made threats in each case he stayed in the vicinity at least for a time as if to monitor that no complaint would be made.  That submission does not appear to be entirely supported by the evidence.  In respect of the first offences the complainant's evidence on this point is as follows:

"I've closed the door behind me and then hopped into bed, and then about five minutes later Gareth came in and said - came in and sat down on the edge of the bed and - sat down and asked me - he said to me, 'Did you like what I did to you?', and I said to him, 'No'.  Then he goes, 'Don't tell anyone or else'.  Then I said, 'Just leave.  Just leave and close the door'.  Then he got up and left and left the door like partly open, and I then got up and closed the door because it made me feel a bit safer that it was closed but there wasn't a lock on the door so I couldn't lock it.  Then I went - hopped into bed and stayed up for a bit and then fell asleep."

11. The second complainant's evidence was as follows:

"Then I went back inside through the back door and I walked in and everyone was sitting down still watching the movie.  I sat down and didn't say anything, and yeah, at about, say, about five minutes later, about that, yeah, about five minutes later, the accused got up and, like, took his keys outside, I'm not sure if he went in his car or, like, you could hear the car, but I'm not sure if it was his, and he came back about 15 minutes later with a pack of cigarettes and went outside and started smoking them, I think, and then ---

Did you have any other conversation with him that evening? --- No, not that evening, no."

12. A comparison of the two sets of offences also shows many differences between them.  There was no similarity of time and place, the first offences occurring over two years earlier and in a different suburb.  The first offences alleged two acts of masturbation by the appellant upon the boy, each concluding in ejaculation and one act of compelling the boy to masturbate the appellant; the acts occurred over a period well in excess of 30 minutes.  The second set of offences allegedly involved the appellant in masturbating the boy, removing the appellant's pants and performing oral sex on the boy over a much shorter period. 

13. Counsel for the respondent submits that the possibility of two such similar sets of allegations independently made by each boy would lead a jury to exclude any innocent explanation and that the underlying pattern in the choice of two 13 to 14 year old boys in potentially vulnerable positions away from the protection of their families has the result that there is no reasonable view of the evidence in each case other than supporting an inference that the appellant is guilty of each set of offences. 

14. In answering the first question posed in O'Keefe a trial judge must remember that sexual cases, especially those involving children, are peculiarly likely to arouse feelings of emotion and prejudice which may not be able to be balanced by directions to the jury: see de Jesus v The Queen.^[6]

15. The second complainant claims that immediately before the offences occurred the appellant was distressed with his head in his hands and his arms on his knees and when asked by the boy what was wrong responded that "... it had something to do with him going to Court on Monday, like the next week."

16. Another youth, who was also present on the Friday night when the second lot of offences allegedly occurred, spoke to the complainant boy the following Tuesday and said "I know something about Gareth," to which the complainant boy replied, "Well, what happened to that other basketball kid happened to me on Friday night".

17. Although the second complainant had not met or spoken to the first complainant prior to making his complaint to police, the evidence does suggest the second complainant knew that the appellant had been charged with offences involving sexual impropriety against a juvenile basketball player.  There is a real possibility that knowing this, he may have concocted a false allegation.

18. In answering the first question posed in Pfennig and O'Keefe the two sets of offences have at least as many dissimilarities as similarities.  Taking cognisance of the emotive and prejudicial effect on juries where sexual offences involving juveniles are concerned, it cannot be said that the similarities are so striking that there is no reasonable view of the evidence of the second offences other than supporting an inference that the accused is guilty of the first offences and vice versa.  In the end, despite some similarities, the evidence of each set of offences amounts to no more than evidence of propensity.

19. The evidence in respect of one set of offences cannot be said to be a step in the proof of the prosecution case in the other set of offences; it is therefore impossible to conclude here that the probative force of the propensity evidence outweighs its prejudicial effect.  A decision in respect of this question involves striking a balance but is an application of principle not an exercise of discretion.^[7]  The two sets of offences should not have been heard together and error resulting in the possibility of a miscarriage of justice has occurred.

20. It is always regrettable when re-trials are necessary especially in cases of this type which are traumatic for both the complainants, the appellant and their family and friends.  Nevertheless that is what justice requires in this case.  I would allow the appeal, quash the convictions and order separate re-trials in respect of each set of offences.

REASONS FOR JUDGMENT – DEMACK J

Judgment delivered 6 August 1999

1. I have had the advantage of reading the draft reasons for judgment of both the Chief Justice and the President, and will not refer at length to the facts of this case which are sufficiently mentioned in those reasons.

2. The difficulties associated with propensity evidence are unlikely to abate.  The last of the loose parts for [1998] 4 VR contains three decisions of the Victorian Court of Appeal touching upon varying aspects of this kind of evidence.  Two of those decisions, R v Best [1998] 4 VR 603 and R v TJB [1998] 4 VR 621, deal with Victorian legislation which has abolished the rule that allegations of sexual offences committed against victims should be separately tried if the evidence in relation to one complainant is not admissible in relation to the other or others.  The judgments of Calloway JA in each case contain relevant and significant observations for this present appeal.  In Best, he said (p 606):-

“The leading case in Australia on propensity evidence is Pfennig v R (1995) 182 CLR 461.  The opening paragraph of the joint judgment of Mason CJ, Deane and Dawson JJ at 464-5 reads:-

`This appeal raises questions as to the admissibility of what has been described as propensity or similar fact evidence and the use to which it can be put.  There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged.  It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence.  Those categories are not exhaustive and are not necessarily mutually exclusive.  The term `similar fact’ evidence is often used in a general but inaccurate sense.’  [Emphasis added.]

The two main divisions of propensity evidence are similar fact evidence and relationship evidence.  There are subdivisions.  For example, similar fact evidence may go to the identity of the offender or to the improbability of coincidence if a number of similar accounts are all true.  It usually, but not always, involves an offence against a different victim.  Relationship evidence is different in that last respect but, like similar fact evidence, its probative value also varies from case to case.  Sometimes it is necessarily led to make a complainant’s account intelligible.  On other occasions it negates accident or establishes motive.”

3. The present case involves similar fact evidence, and its purpose is not to identify the appellant, but to prove what he did.  In the words of Evatt J in Martin v Osborne (1936) 55 CLR 367, at 385, the evidence allows for “admeasuring the probabilities or improbabilities of the fact or event in issue” (quoted by Mason CJ, Wilson and Gaudron JJ in Hoch v R (1988) 165 CLR 292, at 294).

4. However, because such evidence can be impermissibly prejudicial, it is only admitted if it has the cogency that has been identified in the cases.  Where the propensity evidence consists of similar incidents to those charged, the significant aspects of the evidence that must be addressed are the particular propensity and the way in which it is expressed.  Hoch was a case that involved similar factual issues to those we are concerned with here.

5. In Pfennig, the evidence of what the appellant had done to another boy, namely abducted him, raped him and left false clues as to what had happened to him, was admitted as part of the proof that he had murdered a boy whose body had not been found.  The only possible inferences at the trial were that this boy had drowned or had been abducted.  The evidence excluded drowning.  The trial judge, on a voir dire, had held that abduction for sexual purposes was the most likely reason for any abduction.  The evidence about the other abduction was circumstantial evidence tending to identify the person responsible for the death of the boy who was abducted.

6. Thus Hoch is more significant to the resolution of the issues here than Pfennig, although the tests found in Pfennig by Thomas JA in O'Keefe (CA No 332 of 1998) are properly treated as binding on us.  When Hoch’s significance to this appeal is seen, the matters referred to in that case, as rendering the similar fact evidence admissible, become important.  They are referred to in the judgment of Brennan and Dawson JJ (at 298):-

“1.All the boys were inmates, if that is the correct word, at Tufnell Home.

2. That they were young boys, their ages being 13, 13 and 10.
3. That the accused was working as a supervisor at Tufnell Home.
4. In relation to the type of offences, they all involved penis play, both of the boys and of the accused.
5. On two of the occasions approaches were made to boys in showers.
6. In two of the cases use was made [by] the accused of the words along the lines of, `It cleans it’ when referring to touching or playing with the penis.
7. That these offences took place one at Tufnell Home itself, one at Scarborough House, Scarborough, which was associated with Tufnell Home, and one at Bribie on a Tufnell Home outing.
8. The time span was some six weeks covering the three offences.”

7. These particulars show what the propensity was - “penis play” - and the way that propensity was expressed - upon boys in a home where the appellant was a supervisor, while the boys were showering.  In other words, the evidence about the expression of the propensity showed how the appellant chose the persons upon whom his propensity was expressed, the circumstances in which it was expressed and the manner in which he sought to conceal his improper conduct.

8. It was not argued in Hoch that these matters were not strikingly similar (p 299).  The appeal turned on the possibility of concoction.  It had not been like that at the trial, as Brennan and Dawson JJ observed (at 304):-

“It seems that attention was fastened on the question of sufficient similarity and the question of conspiracy was either overlooked or treated as a question for the jury alone.”

9. It seems to me that some of the difficulty in this case has arisen because the propensity, which it was said the evidence disclosed, was not identified as precisely as it might have been.  The evidence of the complainants was of penile stimulation by hand and, in one instance, that was followed by oral stimulation.  Generally this resulted in ejaculation.  On one occasion, a complainant said the appellant had grabbed his hand and put it on the appellant’s penis.  However, he withdrew his hand, and, unlike the instances where the appellant persisted in masturbating that complainant, this was not persisted in.

10. Given the range of sexual activities to which the ears and sometimes the eyes of jurors and judges are now exposed, it is permissible to say that the propensity disclosed in the evidence is to seek gratification through the manual or oral penis stimulation of boys in their early teens.

11. The matters which the Chief Justice has identified, which indicate how the appellant expressed this propensity, show a strong similarity in the way the appellant met the teenage boys through association with basketball.  The points (c), (d), (e) and (f) show a strong similarity in circumstances in which the propensity was expressed.  Point (g) shows a strong similarity in the manner in which the appellant sought to conceal what he had done.  All of the circumstances involved in the two incidents were not identical, but that is not the test.  There was a striking similarity.

12. It is also important to note that this evidence of similar acts was not admitted to prove the identity of the offender.  It was admitted to measure the probability of the facts in issue.  Consequently, Mr Long’s criticism of a number of the matters identified by Mr Meredith, that they were similar to things any offender might do, is beside the point.  What is required is a degree of similarity in the propensity and its expression which answers the two questions posed by Thomas JA in O'Keefe.  In my opinion, the evidence of both complainants was admissible in the trial of the appellant on the charges against each complainant.

13. This raises the issue which was not debated before us, namely, the possibility of concoction.  This case is very different from Hoch, where there was evidence that raised the possibility of concoction.

14. The appellant Hooper was due to stand trial on charges arising out of the first complaint at the time when the incidents involving the second complainant occurred.  The second complainant had not met or spoken to the first complainant before giving a statement to the police.  He knew something of the allegations the first complainant had made.  The second complainant said the incidents involving him happened on a Friday.  He told some school friends about this on the following Tuesday and later that day he told his mother.  There is no evidence of any malice or prejudice on the part of the second complainant.

15. In Hoch, Mason CJ, Wilson and Gaudron JJ said, at 297:-

“Thus, in our view, the admissibility of similar fact evidence in cases such as the present depends on that evidence having the quality that it is not reasonably explicable on the basis of concoction.  That is a matter to be determined, as in all cases of circumstantial evidence, in the light of common sense and experience.”

“In the present case it is clear from the evidence that the several complainants had a close relationship as well as opportunity to concoct their accounts of the offences charged.  One complainant was ill disposed towards the applicant even before the events the subject of the counts in the indictment were said to take place.  There is no feature of the case which displaces concoction as a reasonable explanation of the several accounts.  The evidence of the several complainants lacked the requisite probative force necessary to render it admissible as similar fact evidence in relation to the other offences charged.  There was therefore a miscarriage of justice by reason that the evidence was wrongly admitted and by reason of the refusal of the application for separate trials.”

Brennan & Dawson JJ said p 302:-

“If there is a real danger of the concoction of similar fact evidence it is consistent with the attitude which the law adopts toward evidence of that kind that it should exclude it upon the basis that its probative value is depreciated to an extent that a jury may be tempted to act upon prejudice rather than proof.  That consideration is of special importance in cases where the fact to be proved is inferred not from similar facts which have been clearly established but from the concatenation of the testimony of a number of witnesses who depose to the occurrence of similar facts.  The credibility of that testimony bears directly on the probative force of the evidence.  Several witnesses all giving evidence to a similar effect are generally easier to believe than one witness.  But if the witnesses have put their heads together that is not the case.

In this Court, counsel for the respondent sought to relegate the question of conspiracy to the status of a factor bearing on the exercise of the general judicial discretion to exclude evidence which, though otherwise admissible, would be unduly prejudicial to an accused: R v Christie [1914] AC 545.  Whatever scope there may be for the exercise of the general discretion to exclude admissible similar fact evidence, the existence of the general discretion does not subsume the question of conspiracy and remove it from its central place in the assessment of the probative force of the evidence on which the admissibility of the evidence depends.”

16. In this case, there was no close relationship between the two complainants:  there was no evidence of ill will;  there was no suggestion they had put their heads together;  there was no opportunity for them to concoct  the second complainant’s account; there was no reason why the second complainant would concoct a story to support the first complainant whom he had never met.  Common sense and experience offer no guide as to why the two accounts should be explained on the basis of concoction or conspiracy.

17. In my opinion, the evidence of each complainant was properly admitted as evidence against the appellant in respect of the charges arising from the complaint of the other.  There is no possibility of any concoction which would so affect the cogency of that evidence as to render its admission unfair.

18. I agree with the reasons of the Chief Justice in respect of the second ground of appeal.

19. The appeal should be dismissed.